An Overview of Forensic Linguistics: Language and the Law①

MICHAEL WALSH

(University of Sydney, Australia)

1.THE SCOPE OF FORENSIC LINGUISTICS

A useful starting point to appreciate the range of activities under the general rubric of Forensic Linguistics is provided by the recently publishedRoutledgeHandbookofForensicLinguistics(Coulthard and Johnson 2010).Their major headings with further inclusions that I have inserted are as follows:

1) The language of law and the legal process

Legal language including legal talk (police interviews and trial discourse), legal writing (specificity, complexity, attitude and emphasis), legal translation

Participants in police investigations, interviews and interrogation including citizens’ emergency calls, Miranda rights, sexual offences, police and lawyer interviews

Courtroom genres including the historical courtroom, trial narratives, prosecution and defence closing speeches, leniency pleas

Lay participants in the judicial process including instructions to jurors, rape victims, vulnerable witnesses, false confessors

2) The linguist as expert in legal processes

Expert and process including trademark linguistics, consumer product warnings, forensic phoneticians and forensic linguists

Multilingualism in legal contexts including nationality claims, non-native speakers in detention; interpreting inside and outside the courtroom

Authorship and opinion including forensic stylistics, text messaging forensics, plagiarism

3) New debates and directions including

Multimodality and forensic linguistics

Terrorism and forensic linguistics

Cross-cultural communication

(Coulthard and Johnson 2010: ⅷ-).

Obviously it is not possible to delineate all these topics here but I will illustrate some aspects of Forensic Linguistics through Australian Aboriginal land claims and Native Title cases.

2.FOCUS ON ENCOUNTERS OF AUSTRALIAN ABORIGINES IN LEGAL CONTEXTS

In this paper my focus will include: legal talk, trial discourse, lawyer interviews, trial narratives, vulnerable witnesses, the linguist as expert in legal processes, forensic linguists, multilingualism in legal contexts, interpreting inside and outside the courtroom, multimodality and forensic linguistics, and cross-cultural communication.This selection reflects the nature of this kind of legal encounter where some important areas of Forensic Linguistics are bypassed.For instance, legal writing, police interviews, leniency pleas, trademark linguistics and plagiarism are all important legal areas but for the most part irrelevant to the proceedings in Australian Aboriginal[注]In Australia there are two groups of Indigenous people: Aborigines and Torres Strait Islanders.The term Indigenous is frequently used to cover both categories, and some legislation is framed in these terms.However, in this article I only refer to cases, situations, and features specific to Australian Aborigines; therefore, I use terms like Aborigines or Aboriginal.While there may be instances in which my commentary might apply equally as well to Torres Strait Islanders, I make no such claim.Although I have carried out fieldwork in Indigenous Australia for over thirty-five years, it has been exclusively with Australian Aborigines.land claims and Native Title[注]The term native title is potentially ambiguous between “that element of state and Commonwealth law, as opposed to the traditional basis for Indigenous land tenure in an area” (Henderson 2002:1).I use it in the former sense.cases.

3.THE WHOLE TRUTH AND NOTHING BUT THE TRUTH

Despite the oft-repeated claim by lawyers and the courts that the legal process is a relentless search for the truth, the very experienced forensic linguist, Roger Shuy, observes:

When a witness is sworn in court, he or she agrees that what is said will be the truth, the whole truth and nothing but the truth....Courtroom strategy, whether for the prosecution or the defense, causes truth to be more elusive than it would otherwise appear.For example, an attorney may ask a witness, “Were you on medication and seeking a physician’s opinion?” If the witness was on medication but not seeking a doctor’s assistance, there is no way to answer with either ayesor ano....Some attorneys in some circumstances will permit no explanation and will instruct the witness to answer with either ayesor ano, but not both.In such cases, there is no way that the truth can be produced by witnesses.They may want to tell the whole truth and nothing but the truth but they are prevented from doing so by the very process that demands it.(Shuy 1993: 136)

A journalist setting out the at times horrific details of a woman who suffered badly in the legal process to the point where truth could be seen as a nuisance:

What Sheila’s case illustrates with special vividness is something all attorneys know, which is that truth is a nuisance in trial work.The truth is messy, incoherent, aimless, boring, absurd.The truth does not make a good story; that’s why we have art.The prosecutor prosecuting an innocent person or the defense lawyer defending a guilty client actually have an easier task than their opposite numbers.In the unjust prosecution and in the lying defense, much of the work of narration—of transforming messy actuality into an orderly story—has already been done.The just prosecution and the defense of an innocent require a great deal more work.For truth to prevail at trial, it must be laboriously transformed into a kind of travesty of itself.Sheila’s lawyers, working in haste, and receiving no help from their literal-minded client, were unable to affect this transformation.(Malcolm 1999: 26)

This writer goes on to suggest that it is not just lawyers who have apparently abandoned the pretence of truth-seeking but even the jury:

The method of adversarial law is to pit two trained palterers against each other.The jury is asked to guess not which side is telling the truth—it knows that neither is—but which side is being untruthful in aid of the truth.No one has thought of a better system, but everyone who has participated in it—whether as defendant, defense lawyer, plaintiff, plaintiff’s lawyer, prosecutor, judge, or juror—has gained a sense of its cynicism and absurdism.(Malcolm 1999: 79)

4.AUSTRALIAN ABORIGINES, LAW AND LAND RIGHTS

Limitations of space preclude giving any detailed background but further detail can be in Neate (2003), Sutton (2003) and Walsh (2008).For our purposes I want to just give some basic background about theAboriginalLandRights(NorthernTerritory)Act1976 (abbreviated henceforward as ALRA) andNativeTitleAct1993 (abbreviated henceforward as NTA).

Land claim and native title proceedings vary in territorial scope and in the essential criteria through which the judge will determine a putative land owning group’s rights to country.Since 1976 a series of hearings have been held in the Northern Territory of Australia to determine which Aboriginal people should be found to be ‘traditional Aboriginal owners’ of certain areas of land in the Northern Territory.Aboriginal groups may put forward a claim within the terms of the ALRA to areas of unalienated Crown land.This is a Federal Act relating to land in the Northern Territory and specifically to ‘traditional Aboriginal owners’.

In other parts of Australia there are other land rights models.Notable among these is the NTA.There are two crucial differences between the NTA and the ALRA: for the NTA eligible land isnotrestrictedtoareasofunalienatedCrownland, and there must becontinuityinthetraditionthrough which connection to country by the putative land owning group frames its native title from the present back to the time of the establishment of British sovereignty over the land in question.So for different areas there will be different time frames: Sydney area traces back to 1788 whereas Darwin area starts at 1825.Such time differences become critical when one is trying to trace Aboriginal claimants back to their ancestors largely in the absence of written records.

Another distinctive feature of these cases is that religion is on trial in an effective way.It is relatively unusual for the testing of religious beliefs to be central to the court proceedings.An added difficulty is that some of the legal practitioners may have firm religious beliefs but from the Judeo-Christian traditions so that the religious beliefs espoused by Aboriginal claimants may appear—at best bizarre and at worst fanciful.

Myth carries authority in primitive [sic] society for at least three reasons.First, myth is a “true” story, never a fable, a fiction, or a childish fancy tale.Second, it is a sacred story narrating the acts of the gods and other divine beings that took place in the beginning of mythical time.What occurred—in the words of Mircea Eliade—inillotempore(at this time) represents for the primitive peoples a reality higher and greater than any kind of historical reality known to them.Myth is authoritative because it reveals the “absolute truth” of the events at the beginning of mythical time.(Waida 2005/1987: 692)

An experienced anthropologist also points out that important myths are not recalled, told, or sung in fully elaborate form but ‘called on’ in fragments.This will become relevant later in this paper in connection with what has been referred to as the ‘helicopter view’ of Aboriginal traditions.In the past an Aboriginal person would have acquired their traditional knowledge incrementally over a lifetime.However the court proceedings require the equivalent of a crash course—something that is quite foreign to Aboriginal practice.

Especially the proceedings for the ALRA tend to be held in isolated locations where local people are not used to large influxes of strangers, which I have sometimes referred to as ALRA’s ‘travelling circus’.This is not to suggest that there is any lack of seriousness in the proceedings but to indicate that like a traveling circus lots of people are involved, and they must travel from place to place, perform and then move on, carrying all their needs for accommodation, equipment and food with them.At the apex of this traveling group is the judge [Aboriginal Land Commissioner in the case of ALRA].He will be assisted by his anthropologist, his associate, and his counsel.There will also be recording and transcription staff (female and male).Another party includes counsel for the claimants (often senior and junior), solicitor, female and male anthropologists.Typically opposing the claim are counsel for the Northern Territory Government (often senior and junior), solicitor, female and male anthropologists/researchers.Usually there will be counsel for other interest groups (sometimes senior and junior), solicitor, female & male anthropologists/researchers.To manage day-to-day needs for transport, food and equipment are the field staff including drivers, caterers, etc.and their equipment and vehicles.Of course there must also be claimants and Aboriginal witnesses, relatives and friends, and finally, journalists, hangers on and others.

Some of the people present are not directly part of the legal proceedings, but the actual participants in the proceedings lead to numerous discursive pairings.There are numerous sources for deficit or clashes from one participant to another, including: judge to judge, judge to lawyer, judge to anthropologist or other expert [henceforth: ‘expert’], judge to Aboriginal claimant, lawyer to judge, lawyer to lawyer, lawyer to expert, lawyer to Aboriginal claimant, expert to judge, expert to lawyer, expert to Aboriginal claimant, expert to expert, Aboriginal claimant to judge, Aboriginal claimant to lawyer, Aboriginal claimant to expert, Aboriginal claimant to Aboriginal claimant.

Clearly the power relations are not evenly distributed in this array of interactions with judges occupying the zenith of the hierarchy.

Because the ALRA is regarded as ‘beneficial legislation’, some attempts have been made to make the proceedings less formal than is usual, namely

•taking evidenceinsituat places of significance to Indigenous people

•relaxing the rules of evidence

•allowing evidence from groups of people rather than from individuals.

Nevertheless there are difficulties despite the quasi-informality of land claim and Native Title proceedings:

Anthropologists mostly hold it as axiomatic that a statement made by an individual in a formal setting, or to a comparative stranger or in an unaccustomed form, may not accord with the ideas and views expressed in a less formal setting.(Palmer 2007: 5)

Many lawyers new to land claims go through a period of culture shock as they adapt to practices such as: witnesses listen to each other’s evidence; witnesses are not asked to take an oath; there is a great reliance on Aboriginal oral traditions which might otherwise be regarded as ‘hearsay’.

Land Commissioners conduct an inquiry under a set of practices which is quite unlike anything their fellow judges experience, and the structure of the hearing has been significantly Aboriginalized in ways that enable Land Commissioners to hear Aboriginal people’s evidence fairly.(Rose 1996: 44)

5.VULNERABILITY OF ABORIGINAL WITNESSES—CATCH-22

For 35 years, Australian Aboriginal witnesses have been subjected to varying degrees of oppression in Australian Aboriginal land claim and Native Title cases.

In each case the legal arena requires Aboriginal witnesses to be examined, cross-examined and re-examined to demonstrate their traditional connections to Aboriginal land.

In this arena some witnesses appear reticent, or even inarticulate, despite their actual, considerable knowledge of Aboriginal traditions.Firstly they may be reticent because the expectations about the distribution of knowledge are profoundly different in their culture: it is not appropriate for a neophyte (e.g.a cross-examining barrister) to be granted access to traditional knowledge which the witness is well versed in but not expected to freely divulge.

On the other hand many Aboriginal witnesses are overwhelmed by the culturally distant conventions of the Australian legal system.However there are also Aboriginal witnesses who have achieved a high degree of acculturation with the wider Australian social and political system.Ironically, such Aboriginal witnesses may be criticized by opposing counsel, essentially for their Anglo-Australian cultural literacy, so that such witnesses will be depicted as not, or less, ‘traditional’ than their less acculturated counterparts and therefore have their status as Aboriginal traditional owners of land discounted, or at least questioned.For these vulnerable witnesses, there is a Catch-22 cleavage:ifyouarearticulate,youappearless‘traditional’,andifyouareinarticulate,youmayappear‘traditional’butitisdifficultforthetribunaltoassessyourclaimtotraditionalownershipofland.

Occasionally judges have commented on the difficulties of taking words with their normally expected interpretation.A good example is provided by Justice Peter Gray of the Federal Court of Australia and from 1991 to 1997 the Aboriginal Land Commissioner: “Justice Gray has explained, for example, that the answer ‘don’t know’ should not be accepted at face value.It may conceal one of a number of propositions:

•This is not my country, so I can’t speak about it.

•Although this is my country, it is not appropriate for me to speak about it when someone more senior is present.

•Although this is my country, it is not appropriate for me to speak about it, but someone else should be approached for the information.

•This is not a matter about which I can speak in front of people who are present, e.g.women or men or children.

•I cannot say the name because it is the name of a person recently deceased.

•I cannot say the name because it is the name of my sibling of the opposite sex.” (Gray 1995, cited in Neate 2003: 23)

What Gray is alluding to concerns knowledge management.Traditional knowledge is distributed in three ways: general, male only, female only.

The first category is relatively uncontroversial, and in the land claim and native title arena, includes information like Aboriginal place names, genealogies, use of plants and animals, life histories etc.

The knowledge restricted only to males mostly involves secret/sacred male ceremonial information and, correspondingly, there is material restricted only to females which involves secret/sacred female ceremonial information.

For some Aboriginal groups witnesses become especially vulnerable because of their age, namely that they areoldenoughtoknowbutnotoldenoughtospeak.

In the Kenbi land claim, involving land near Darwin, Povinelli (2006: 55-56) instances the case of Trevor Bianamu who was expected to be the senior spokesman at about 35 (far younger than he felt comfortable with and much younger than normal because of the lack of suitable males from the Aboriginal group to which he belongs).Young people can be monosyllabic and appear to be uncommunicative: this is a form of disengagement which mirrors their behaviour more generally in the presence of strangers.The difficulty is that their reticence can be taken as indicative of lack of traditional knowledge and therefore can lead to them being left off the list of traditional owners.

While land councils employ male and female anthropologists in attempt to accommodate these differences in the distribution of knowledge, the land claim process tends to be dominated by males.

To date, all ALRA and NTA proceedings have been presided over by male judges.There are closed sessions in which senior male claimants, the judge, male anthropologists and lawyers attend to evidence which substantially includes knowledge restricted to males.The resulting transcript is clearly marked as restricted just to males.

Aboriginal women are placed in an invidious position.Their traditional practice proscribes the disclosure of women’s business to males but at the very least the fact that there is a male judge presents them with a Hobson’s choice:eitherrelaxtheirtraditionalrestrictionjustforthejudge,or,standbythetraditionalrestrictionandtherebybelessabletodemonstratetheirtraditionalknowledge.

Groups of Aboriginal women at different times and places have exploited both options.The former option in effect elevates the judge to the status of an honorary female with all other participants being women.Incidentally this gender division has resulted in a need for both a male and female sound recordist.Access to the transcript is restricted to women and when the judge writes his report he is circumspect about what he has learned in either sort of restricted session.

A very experienced female anthropologist reports on a situation in which initial consultations regarding Aboriginal land had focused on Aboriginal men notwithstanding that there was a women’s site affected:

Failure adequately to consult in the first instance frequently disadvantages women.A regular consequence of inadequate consultation is that women’s information appears either as an optional add-on, or as an after-the-fact attempt to make up for a deficiency in the previous information.(Rose 2001: 111)

Povinelli (1998: 604) describes the reaction of an Aboriginal woman in a dream in which she was spoken to harshly by the Aboriginal Land Commissioner: “I got brave now inside.‘If we are going to win this land I am going to have to talk directly [rudely] to this whiteman.You’re not going to be shamed.’”

One judge has suggested that Native Title cases can create additional disadvantage compared to ALRA cases:

Difficulties with respect to handling secret information do not stop with the taking of evidence....There can be little doubt that the handling of native title applications in a court will be even more disadvantageous for Aboriginal people.It is relatively easy to deal with evidence in a restricted way when it is given in an administrative inquiry with a small number of parties.The task becomes more daunting when the evidence must be the subject of a trial and a judgment in a court proceeding, in which dozens, even hundreds, of people may have accepted the invitation to become parties to oppose a finding that native title exists.(Gray 2000)

At times a judge may suggest to an Aboriginal person: you’re making it up.In the Kenbi land claim, involving land near Darwin, Justice Olney said:

I must just say to you that what you have said today and what you have said on other occasions, that I am inclined to the opinion that you have made up your own rules as you have gone along with this information.(Australia 1990: 2430; Walsh 1994: 229-230)

This was a situation where one might have expected Aboriginal witnesses to be circumspect when talking about restricted information (sometimes referred to by Aboriginal people as ‘inside stuff’).In this case a male Aboriginal witness remarked under cross-examination:

I am in a position where I prefer not to talk about the insight [sic] stuff that I was talking about at Bakamanadjing.I prefer not to talk about that.I would rather somebody like Johnny [a senior ceremonial authority in this area] do the speaking if anything had to be said.That is my position now.(Australia 1990: 2436)

In effect the judge seemed to be musing over the question: just how traditional are you? It seems to me that it was not entirely coincidental that the witness being criticized by the judge did not fit the stereotype of a traditional Aboriginal person who would be more bush-oriented, non-literate, and harder to comprehend.By contrast the witness under attack was literate, highly articulate, and engaging in a lifestyle superficially similar to a middle-class Australian suburbanite.I have never witnessed a more bush-oriented Aboriginal person being challenged in this way over reticence about restricted information.

An experienced anthropologist has looked at the proceedings from another perspective, that of a clash between the discourse of law and that of anthropology:

It seems to me that the law and anthropology differ very greatly in their discourse....I expect one could characterize the law as having the function of bringing disputes to an end.Whereas it seems to me anthropology, its tradition as with other academic disciplines, is to analyze, problematize, interpret, and debate issues rather than settle them once and for all.In fact, we question each other’s work constantly and that’s the strength of the tradition....thecourtsareactuallymakingdecisionsofakindthatanthropologistswouldneverpresumetomake,becausetheyrecognisethatthesocialworldisinflux[my emphasis].(Cowlishaw 1994: 53)

As part of the discursive clash another experienced anthropologist has pondered the effects of differing stances on the truth:

An abstract scenario: what if the anthropologist is morally certain that the primary materials for a particular case are wishful thinking and imagination? ...One’s skepticism can range from a sense that there is some fundamental dishonesty to a relatively insignificant sense that some details just do not add up.The severity of one’s skepticism must have a strong bearing on one’s actions, but in any case one needs to bear in mind that we are bound to speak truthfully in the witness box; there is no ambiguity about that.Whatifourtruthfulwordsareinconflictwiththeclaimant’sevidence[my emphasis]? (Rose 1995: 48).

Another experienced anthropologist is less kind, virtually accusing anthropologists and Aboriginal people of making things up.

Leaving aside the possibility that withholding tangible evidence may have been a ruse to conceal the glaring absence of any objects, it could be rated a keenly calculated, utilitarian strategy, almost an invention in the sense of a vast exaggeration of a traditional religious feature; an invention made with the purpose, in the face of the importance of the context and the court’s dignity, spectacularly to underline the Aboriginality of the claim and emphasize its spiritual autonomyvis-à-visthe powerful Western legal system.Thus, two potent semiotic acts both representing power in their respective cultural setting were impressively juxtaposed: indigenous concealment of religious matter taken to the extreme versus the hegemonic canon of verification and demand for transparency of evidence in matters of jurisprudence.(Kolig 2003: 215).

So it has been suggested that at least some people are framing the ethnographic discourse to suit the law.We turn now to a (largely) suppressed discourse: anthropological accounts are shaped by the land claims process rather than being a dispassionate review of the ‘ethnographic facts’:

...certain members of a group constituted as a single entity for the purposes of a land claim in 1980 never in fact reflected social reality, but that the pairing of the two groups had been initiated by anthropologists working for the land claim some years earlier.He argued that while his client’s group had gone along with it at the time on legal advice they now wished to claim their separate identity: “This pairing of [the two groups]...as initiated by anthropologists who prepared documents for the land claim and is an artifact not of everyday life and living but of the processes that have been brought into existence by the implementation of the 1976 Act.” (Sansom 1983: 3; Ritchie 1999: 267)

An emphasis on some kind of pre-contact, idealized state of affairs is part of what Wolfe (1999: 179) refers to as ‘repressive authenticity’ whereby there must be a sharp divide between ‘authentic’, full-blood traditional Aborigines with no mixtures: the ‘half-caste menace’ to be resolved by an orderly progression to quadroon to octoroon and eventually to what Stanner (1969), in another context, has referred to as ‘selective amnesia’.

From the perspective of anthropologists, the requirement that they mould their accounts of Aboriginal connections to traditional country into a form which is in accordance with and intelligible to native title law can be seen as affronting core principles of anthropological social enquiry.Demands for systematicity and definitiveness in accounts of Aboriginal law and custom and the requirement that they be established as ‘traditional’ sit uneasily with contemporary anthropological understandings of Aboriginal cultures, in which what Francesca Merlan termed ‘epistemic openness’ is a core feature.(Martin 2004: 39)

6.LAWYERS IN THE LAND RIGHTS ARENA

Lawyers entering the land rights arena bring with them expectations about a whole range of issues, including the management of knowledge.Aboriginal people are expected to have knowledge of the system as a whole that they can make explicit on demand.However if you were to quiz the average Anglo-Australian on the system of local government within which they reside one would usually find that they have a hazy and partial knowledge of the system.

The basic point here however is that Aboriginal people of a more or less traditional cast of mind do not usually communicate overtly in terms of complete paradigms or lists or in terms of objectified and comprehensive analytical schemes.At one point Judy Trigger, when asked about reasons why someone isngurraritja[roughly, ‘traditional owner’], effectively said thatngurraritjaisngurraritja([Jango] T1857—1858).There is no Aboriginal tradition of unpacking such complex concepts for the instant benefit of newcomers.Their own usage of complex social or religious concepts is learned gradually over years, mostly from shreds and patches.The anthropological method is to observe many uses of such terms and related ones and piece the jigsaw together so as to arrive at a systemic analysis.Verbally, formulated ‘native models’ are grist for the mill of such analyses, but do not determine them.This is possibly an area where attitudes within legal circles may differ from scientific ones.(Sutton 2007: 176; Sutton 1995: 97)

In at least one case one wonders whether it might have been useful for the judge to have undertaken some very basic training in linguistics.In the De Rose Hill native title claim (Monaghan 2003: 205) difficulties were encountered when an earlier ethnographer’s ascription of certain territory to one group, Antikirinya, appeared to run counter to the claimant group’s self-identification as Yankuntjatjara.A linguist, Cliff Goddard, was engaged on behalf of the claimants to address this and other issues drawing on his longterm knowledge of the area.

In both written and oral testimony, Goddard explained to the court that Yankuntjatjara and Antikirinya are terms denoting the same speech variety: but while Yankuntjatjara is a Western Desert speech label, Antikirinya is an exonym of Arandic origin.This enabled, Goddard argued, the same people to use the former term to distinguish themselves from Pitjantjatjara speakers to the west or to use the latter term to distinguish themselves from non-Western Desert groups to the east.(Monaghan 2003: 206).

In the end the judge sided with the earlier ethnographer’s position that there were two separate territories, Yankuntjatjara to the west and Antikirinya to the east.This was not merely because of the apparent mismatch between the expert witness’ view and that of the Aboriginal witnesses but particularly because the judge “simply could not accept that the same person could identify as Yankuntjatjara in one context and Antikirinya in another” (Monaghan 2003: 207).This judge’s struggle with the ‘exotic’ might be surprising to the linguist who is familiar with the idea that a given people may have a range of names used by themselves of themselves, or, of themselves by others.

In some instances it is an Aboriginal person who struggles with the views of the judge [Olney] as for this Aboriginal woman and Yorta Yorta claimant:

In Olney’s deliberations and final determination he chose the writings of an ethnocentric, land-grabbing, self-proclaimed expert who wrote his memoirs after leaving Yorta Yorta country some 40 years later, as his primary source, even though Curr was ridiculed by all scholars and experts of the day.Olney dismissed the claimants’ own self recognition and oral history as not being reliable, not as reliable as the written word, and full of embellishment.This is an antiquated, backward notion of Indigenous peoples.(Morgan 2009).

Given the relatively small pool of personnel to draw on, from time to time lawyers and ethnographers find themselves first representing certain people’s interests but later opposing them.This results in what I refer to as: lawyer’s intentional amnesia vs ethnographer’s epistemological angst.For the lawyer this situation presents no problem: we simply forget what we were told earlier.

For the ethnographer it can be more difficult.My own rule is to use only information that is in some way in the public domain, whether through transcript, unrestricted exhibits and reports or in some other way.Anything that I have gleaned only from people’s mouths I cannot know.

When I have told non-lawyers of this ‘intentional amnesia’, they are highly skeptical, suggesting that they surely cannot believe this but it seems clear enough to me that lawyers do believe and I suspect it is part of their socialization as lawyers.

So let us turn to the socialization of lawyers, remembering their ideology that the intention of the court is to seek the truth.Here are extracts from one fairly standard textbook to which law students can expect to be exposed:

[in Chapter on Examination-in-chief]

Your examination-in-chief will be most effective if you use open-ended questions that elicit descriptive responses.

[in Chapter on Cross-examination]:

Do not allow the witness to explain

This can best be achieved through the use of leading questions.Never ask an open-ended question on cross-examination.Questions that begin with “how”, “what”, “why”, or elicit explanations of any kind invite disaster.Always ask leading questions that directly suggest a particular answer to the question.For example, instead of asking, “How did you get to the city centre?”, ask, “You took a train to the city centre, didn’t you?” (Mauet and Mc Crimmon 2000: 89, 204).

So how effective is this socialization? In my experience lawyers for the claimants, when questioning those claimants i.e.conducting Examination in Chief, are inclined to ask a series of questions along these lines:

Your name is Bill Smith.Is that right? —Yes.

And you were born in 1935? —Yes.

You reside at Jonestown? —Yes.

And you have three children? —Yes.

And so on,adnauseam.

—

This is a situation where it might have been better if they had returned to this textbook and sought “open-ended questions that elicit descriptive responses”.So why didn’t they follow their training? I suspect they don’t want the witness blurting out something unexpected! Even if it’s the truth!

Particularly for Aboriginal witnesses negative questions result in some well known difficulties:

QuestionsputnegativelytoAboriginalwitnessescommonlyresultinconfusionas they did throughout the Elcho Coronial where Yolngu witnesses would frequently say “Yes” to confirm the veracity of a negatively framed proposition in a situation where the native English speaker would say “No”.In doing so, they were carrying over a convention typical in Aboriginal languages of answering negative questions by affirming or denying the negative proposition....

In spite of the inherent ambiguity of yes/no replies to negative questions by Yolngu witnesses, they continued to be put throughout the inquest.The reason for this is quite simple: yes/no questions are highly controlling, especially when accompanied by a tag (eg.“isn’t it?”, “was it?”, etc.).They allow only agreement or denial and, according to tone of voice or the question’s phrasing, counsel usually indicates which response is desired.In cross-examination of ‘unfriendly’ witnesses, yes/no questions tend to comprise the vast majority of all questions asked.(Cooke 2002: 24-5)

7.HISTORIANS IN THE LAND RIGHTS ARENA

Briefly let us consider the experience of historians in these contexts:

Referring to a 90-page affidavit concerning the removal of Aboriginal children from their families, a very experienced historian and expert witness, Peter Read, recalls:

The lawyers were uneasy at my use of the word ‘Argument’ at the beginning of each section.They did not seem to understand the long and difficult processes by which historians arrive at historical judgments.“It is for us to argue”, I was told, “and for you to provide the historical facts”.(Read 2002: 54)

Such pronouncements by lawyers effectively attack the discursive base of the discipline something that lawyers themselves would be vigorously opposed to should anyone have the temerity to question the discourse of the law!

Another experienced historian complains:

Basically, the expert witness can be subjected to all sorts of ridicule and behavior devoid of the normal respect demonstrated for fellow human beings in most situations....I believe the expert witness becomes entrapped as part of the ‘carceral continuum’ and, as much as one is ‘not in the dock’, one feels to be the accused.Accused of what? Malpractice as an historian by a non-historian? Or bias and thinking in black-and-white as seems to be the aim of the ‘logic’ games of cross-examination.(Curthoys, Genovese and Reilly 2008: 82)

So these are examples of how experts can become vulnerable witnesses.

8.EXPERTS AS VULNERABLE WITNESSES

This must remain anecdotal for the present not merely because of lack of time in my preparation but more significantly because this issue is not getting a lot of coverage in public, although Paul Burke’s 2005 ANU PhD “Law’s anthropology” sets out some examples of expert witnesses being scarified in the Native Title arena.

However I can report with some confidence that a number of those who appeared as expert witnesses have indicated to me that they have had enough and have deserted the Native Title arena.And this is not because of an abnormally thin skin.Indeed one person in this category had been involved in about 50 land claim and Native Title cases before exiting the field.

Therefore those among the most knowledgeable and experienced expert witnesses are being replaced by those who are sufficiently inexperienced that they are unaware of the pitfalls or are desperate for the employment.Either way,thequalityofinputislikelytobereduced.

More generally one judge has commented on withdrawal by experts through perceived unfairness:

...a lot of highly qualified people were not prepared to become involved in giving evidence in the adversary process.They didn’t see it as fair; they didn’t see it as aimed at identifying in any genuine way, what it was that the expert had to contribute to the case.They saw it as a contest between winners and losers.And so many of the professional bodies were telling me that they just weren’t prepared to become involved.(McLellan, cited in Cross 2009: 263)

9.ACCURACY OF WRITTEN TRANSCRIPTS OF PROCEEDINGS

Transcripts of land claim and native title proceedings bestow as many disadvantages as benefits to Aboriginal witnesses(Walsh 1999).On the positive side the transcript provides a record of the witness’ evidence which may assist the judge in reaching a conclusion favorable to that witness.But on the negative side, the transcript can be misleading, distorting the witness’ words as has been demonstrated for the Lakefield National Park Land Claim (pursued under the Queensland Aboriginal Land Act).(Rigsby 1995)

Original transcript: Are you claiming Bagaarrmugu? —No, because I am branded with murder—with murdering Lakefield???

Corrected transcript: Are you claiming Bagaarrmugu? —No, because I blanta [belong to]-belong to Rirrmerr and Lakefield.

i.e.I blanta Rirrmerr=I am part of the Rirrmerr Aboriginal organization.

(Sutton 1994: 120).

This was one of the rare occasions when the judicial officer presiding was prepared to ‘trust’ that an anthropologist representing Aboriginal claimant’s interests would not be biased in amending the transcript.

Two more examples of original and corrected transcript from the same case (Sutton 1994: 120) are included to illustrate that, on the one hand, uncorrected transcript can indicate the opposite of what was intended, and on the other hand, present a mismatch which would be comical were it not so important to represent Aboriginal witnesses’ words accurately.

Original transcript: Must have got near the water when he says that word.

Corrected transcript: Not to go near it, the water, when he says that word.

Original transcript: You know, where that nuclear station?

Corrected transcript: Yeah, where that police station?

10.WHAT IS TO BE DONE

How can one improve the delivery of justice in such proceedings? It would help if a female judge could be appointed—at least for women’s business.One could adopt a bicameral system whereby spiritual matters remain the preserve of older Aboriginal people while younger people can be asked to consider more temporal matters (Sutton 1986).It would be useful to have more accounts of problematic issues by legal practitioners, e.g.Criminal Justice Commission (1996), Gray (2000, 2010), McIntyre and Doohan (2002), Mildren (1999), Neate (2003), Ritter and Flanagan (2001).There needs to be greater self-awareness among lawyers of their professional socialization.In general, there needs to be a better understanding of differences between Aboriginal English and Standard Australian English (Eades 1992).It would help if there were less aggressive cross-examination of Aboriginal and expert witnesses.Ideally transcripts should be checked by an anthropologist/linguist—with appropriate safeguards, e.g.the right of other parties to the matter to put forward their own specialist(s) to spot-check the modified transcript.

It might well be claimed that my suggestions are naïve—reflecting a lack, or at best a poor understanding of the legal process.I am unrepentant about this: I have the luxury of being a member of the public for these purposes.This is ultimately a matter of political will and I like to think that I should be a part of the political process.If better justice is to be delivered in the Aboriginal land claim and Native Title arena, I believe things need to change.

So, given the range of discursive difficulties encountered in land claim and native title cases in Australia, what can be done? One step in the direction of an answer is given here:

It did not have to be like this.Australia is not bound to mean-spiritedly hold its Indigenous people to the limited legal rights that ingenious lawyers can find surviving after 200 hundred [sic] years of/trampling on them.We seem to have forgotten that it is open to us be [sic] generous and creative.There are plenty of precedents for creating special laws and special tribunals for issues that are unsuitable for the courts.(Wootten 2003: 36-37)

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